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Click here for the full text of this decision FACTS:Troy Philip Dock appeals the district court’s imposition of 405 months’ imprisonment. This court originally affirmed the sentence in an unpublished opinion, finding that the court correctly applied the U.S. Sentencing Commission Guidelines. Following the U.S. Supreme Court’s decision that a district court’s sentence enhancement based on facts not found by a jury or admitted by the defendant does offend the Sixth Amendment in United States v. Booker, 125 S.Ct. 738 (2005), the court vacated this court’s original opinion and remanded. The government charged Dock with one count of racketeering activity under the Racketeer Influenced Corrupt Organizations Act, one count of interstate travel in aid of racketeering, multiple counts of alien transporting and one count of conspiring to transport illegal aliens. Dock pleaded guilty to the RICO, ITAR and conspiracy counts. The district court accepted his plea. The district court determined that the combined offense level for Dock’s conduct was 44, after imposing enhancements for vulnerable victims, use of special skill and restraint of victims. It applied a three-level reduction for acceptance of responsibility, resulting in an offense level of 41 and a range of 324 to 405 months. The court imposed a sentence of 405 months, and this appeal followed. HOLDING:Affirmed. Dock contends that the district court committed nonconstitutional sentencing error in enhancing his sentence for vulnerable victims. Section 3A1.1(b) of the guidelines provides for such an enhancement “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim.” The commentary defines a vulnerable victim as a person “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise susceptible to the criminal conduct.” U.S. Sentencing Guidelines Manual �3A1.1 cmt. n.2 (2004). The enhancement encompasses not only direct victims of the defendant’s offense of conviction, but also victims of any conduct committed by the defendant in preparation for or during the commission of the offense. After Booker, where the sentencing judge imposes a sentence within a properly calculated guidelines range, this court will generally find the sentence reasonable. Because an alien’s illegal status is a prerequisite to the crime of alien smuggling, it would have been error for the district court to find unusual vulnerability based on that status. 8 U.S.C. �1324(a)(1)(A)(ii)-(iii). Contrary to Dock’s assertions, however, the district court did not base its vulnerability finding on the aliens’ illegal status. Rather, the court found that Dock knew or should have known of the following FACTS:1. the aliens had been kept isolated in cramped conditions in rural New Mexico waiting for transport, some for up to two weeks; 2. once Dock and another person had locked the aliens in the truck “they were indeed”particularly susceptible’ to the criminal conduct which would be inflicted upon them over the next twelve hours”; and 3. the aliens were so desperate for transport away from the border that they were at the mercy of their transporters. Dock also argues that the district court erroneously enhanced his sentence under �3A1.1(b), because he did not target the aliens because they were vulnerable. That section, however, does not require that the defendant chose victims based on vulnerability, but only that he knew or should have known of the vulnerability. United States v. Burgos, 137 F.3d 841, 843-44 (5th Cir. 1998). The district court correctly applied the vulnerable victims guideline in its calculation of Dock’s guidelines range, and the sentence, which falls within that range, is reasonable. OPINION:Reavley, J.; Reavley, Davis and (Wiener, JJ.

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